Offensive Music Lyrics as Title VII Violation, Quirky Question # 73

Posted by on December 22, 2008 · Leave a Comment 

Quirky Question # 73:
 
We have a work environment where employees have cubicles that are approximately shoulder height.  Some employees have radios or CD players in their cubicles.  We generally don’t interfere with their musical selections, recognizing that people have different musical tastes.  (We do ask our employees to keep the volume down so they don’t bother their co-workers.)  We recently received a complaint from one of our African American employees.  He was upset that some of the workers occupying nearby cubicles play rap music with lyrics he finds offensive.  Is this something we need to worry about?  We don’t want to become the thought police.
 
Roy’s Analysis:
 
You do have something to worry about, but it is not whether your company risks assuming the role of the “thought police.”  Your company has a legitimate right to regulate the content of the information your employees bring into the workplace, regardless of the method by which this information is introduced.  For example, you undoubtedly prohibit your employees from bringing pornographic magazines into your company’s work environment.  Similarly, I assume that your company prohibits your employees from introducing pornographic or otherwise offensive material into the work environment via your computer system.  Most businesses also regulate the information brought into the workplace and disseminated further via the company’s email system.  Likewise, companies legitimately prohibit the type of DVDs that employees may bring into the work environment, either for their own use or to be shown to others. 
 
The analysis that applies to these other media should not be markedly different when the offensive material is brought into the workplace via the radio.  Several days ago, for example, I was driving with my 16-year old son, listening to a music CD he had made from various I-Tunes songs he had downloaded.  As a particular song came on, he demonstrated his sensitivity to our differing musical and language sensibilities by observing, “Dad, you might want to skip this next one.”  The reason for his observation was the language used in the next song and his concern that I might be offended by the lyrics. 
 
The fact is that music lyrics today, particularly in certain musical genres, are very explicit.  Many songs include profanity.  Many others involve words that are sexist, racist, or ethnically offensive.  Other songs include graphic references to certain parts of human anatomy and/or descriptions of various types of sexual conduct.  Given these facts, it is not surprising that one or more of your employees might be offended by the music being played in a co-workers’ cubicle.  It is important for your company to be attuned to these issues and make clear that certain types of lyrics are inconsistent with your company’s policies regarding discrimination and/or harassment and will not be allowed in the workplace.
  
In my view, this should not be an overly difficult calculus.  Songs that involve pejorative, slang terms for members of certain genders or races or religions are problematic.  Songs that make graphic sexual references are problematic.    

 

I recognize, however, that most songs are far from explicit and may involve questions of nuance, inference, double-entendre, or subtlety.  I have no doubt that many readers could send me examples of lyrics that would be difficult for companies to evaluate in terms of potential offensiveness.  As for songs involving these kinds of lyrics, I’d simply reference the standard observation articulated by the U.S. Supreme Court with regard to harassment cases – each case must be evaluated on a “totality of the circumstances” analysis.  Moreover, companies do not have to base their policies or practices on the hypersensitivities of the idiosyncratic employee.    
 
I am aware of one relatively recent case that implicated many of these issues.  In EEOC v. Novellus Systems, Inc., No. 07-4787 (N.D. Cal. June 23, 2008), the EEOC sued the defendant corporation in relation to the experience of an African American employee who was offended by a co-worker who repeated offensive rap lyrics.  The Vietnamese co-worker allegedly played rap songs and repeatedly sang the songs’ derogatory lyrics, including the “N-word” in the presence of his co-worker.  The EEOC contended that the company both failed to respond to the African American employee’s complaints and retaliated against him for complaining.    

 Although Novellus did not admit liability, the company entered into a two-year consent decree that required the company to modify its anti-discrimination policy to include a zero-tolerance statement for music that included “racially derogatory terms and names.”  One last note – it is not just music lyrics that you should monitor.  Some radio talk shows are careless in terms of how they refer to different racial and ethnic groups.  Some are blatantly sexist.  If your workers listen to these types of programs and their co-workers can easily overhear these broadcasts, the same issues addressed above may be implicated. 

Finally, as noted above, I don’t think you need be overly concerned about your company’s role as the “thought police.”  You are not attempting to regulate how your employees think; you are merely regulating their conduct in the workplace.  Your employees, of course, can listen to any music they enjoy regardless of its content, or any talk-show radio programs they find informative or amusing, outside of the workplace.  You are merely establishing a minimum set of standards regulating how your employees behave in the workplace.  Your company has the right to do so.

Filed under Race Discrimination, Title VII · Tagged with

Quirky Question # 29, Maintaining Electronic Records

Posted by on April 2, 2008 · Leave a Comment 

Quirky Question # 29:

Our company has offices in California.  This year we want to improve our document retention practices.  We’ve decided to maintain electronic records of personnel files.  Can we do this in California?  We were told that California law requires the records to be available at the job site.  If this is true, can we switch to an electronic database in California?

[Readers: Today we post another one of our California-specific analyses. The analysis below was prepared by Mandana Massoumi and Gabrielle Wirth of our firm's Irvine, California office. Gabrielle is a 1982 graduate of the University of California, Davis, School of Law, and Mandana is a 1987 graduate of the University of San Francisco School of Law. Their resumes are available on our firm's website at www.dorsey.com.]

Mandana’s and Gabrielle’s Analysis:

The California Labor Code, § 1198.5, specifically addresses the subject of your question. Under the Labor Code, a California employer is permitted to retain personnel files electronically. That right, however, is circumscribed somewhat, to ensure that employees are permitted access to their personnel files.

In short, you can switch to an electronic database. But, you have to make sure the records can be downloaded, stored on a disk, and maintained at your California location. California Labor Code Section § 1198.5 requires employers to permit an employee to inspect his or her personnel records. Inspection pursuant to this section must be allowed at “reasonable intervals and reasonable times.” (L.C. § 1198.5(b).)

Section 1198.5( c) requires the employer do one of the following:

(1) Keep a copy of each employee’s personnel records at the place where the employee reports to work.

(2) Make the employee’s personnel records, available at the place where the employee reports to work within a reasonable period of time following an employee’s request.

(3) Permit the employee to inspect the personnel records at the location where the employer stores the personnel records, with no loss of compensation to the employee.

L.C. § 1198.5(c) (emphasis added). Therefore, § 1198.5 permits the employer to keep the original personnel records at a location other than that were the employee reports to work, so long as a copy is available at the location where the employee works and can be made available for inspection upon request.

Subject to the provision in section (2) above, the employer is not required to make personnel records available immediately upon request. The California Department of Labor Relations, Division of Labor Standards Enforcement (“DLSE”) offered some guidance in its August 27, 1998 opinion letter on how soon such personnel records should be provided to an employee for inspection. (See Wage-Hour Opinion Letter No. 1998.08.27 (1998).)That letter reiterated the employers’ obligation to make records available to an employee within a “reasonable” time. The August 27, 1998 opinion explained that while reasonable attempts at a timely response must be made, there was no per se rule and would be subject to a “case by case” evaluation. The DLSE stated as follows:

“The Division has historically taken the position that the flexibility demanded by the clear language of this statute means that reasonableness can only be determined on a case by case basis. …

Other difficulties in setting any hard and fast rule on access to an employee’s personnel file would allow, for example, an out of state employee who maintains their personnel files in an out of state location, or one who has statewide operation and employee, but maintain their personnel files at a central location, to provide access to these files within a “reasonable period of time” after a request is made to inspect them by the employee. On the other hand, it would not be unreasonable to expect fairly immediate access to an employee’s personnel file maintained at the place where the employee works as required by statute, absent compelling reasons or unusual circumstances that the employer would have the burden of establishing.

In the event your constituent is denied access to their personnel files outside of these time parameters, or altogether, he or she may file a complaint with the nearest office of the Division of Labor Standards Enforcement.” (Emphasis added.)

In sum, the regulations permit employers to keep electronic copies of the personnel files. However, employers must ensure a copy (electronic or hard copy) is maintained and retrievable (to be printed in hard copy format upon request), at the location where the employee works in California.

A separate issue is what materials you wish to include in the electronic personnel records. When maintaining electronic copies of personnel files, we recommend that you consider segregating certain types of materials to ensure that they are not inadvertently produced when the personnel file materials are made available to the employee. For example, business records, confidential data, and privileged communications should be scrutinized carefully to assess whether any of this data belongs in the personnel file. Consideration also should be given to the retention periods that govern different types of documents. While certain types of documents have mandated retention periods, other materials (e.g., emails and other routine communications) do not and may be destroyed after a reasonable period of time. One potential problem with maintaining materials electronically is that you may find yourself retaining documents that could be (and should be) disposed of. Therefore, if you elect to maintain electronic personnel files, you may want to conduct periodic file reviews to cull information that no longer needs to be retained.

Filed under California Questions, Company Records, Discharge, Electronic Records, Personnel Files, Race Discrimination, Recent Decisions, Workplace Violence · Tagged with

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